SCO: Don’t Call It a Fishing Expedition

When U.S. Magistrate Brooke C. Wells ordered IBM Corp. to give The SCO Group Inc. the source code for 232 AIX files earlier this year, she stipulated that if SCO wanted to see more of the AIX code, it must first demonstrate how the additional files are relevant to its case.

Last week, SCO effectively acknowledged that its study of the AIX code at its disposal had come up empty. The embattled vendor filed a “Memorandum Regarding Discovery” to request additional AIX and Dynix source code.

Perhaps mindful of Wells’ strict standard for additional discovery requests, SCO positioned its latest filing as part of an effort to respond to Big Blue’s own demands for discovery.

In March, Wells ordered SCO to identify the specific lines of Unix System V code that it claims IBM misappropriated to Linux, per Big Blue’s request. The rub, SCO’s legal team says, is that the offending code can’t be provided without full disclosure from Big Blue. “IBM’s broad discovery request relating to the derivation of Linux from AIX and Dynix code require[s] SCO to do a detailed code analysis,” SCO maintains. “The means for conducting such an analysis and presenting proof, however, is solely in IBM’s hands.”

The upshot, then, is that SCO wants access to “IBM’s revision control systems, to interim versions of AIX and Dynix which IBM has declined to produce, to programmer notes and design documents related to modifications and revisions to the programs”—that is, much of the material that Wells denied it several months ago. Given the breadth of what SCO has requested, it’s possible that SCO believes that presiding judge David A. Kimball will grant it more leeway.

Not surprisingly, SCO’s move prompted some long-time critics to cry foul. “[T]hey think it's probably the case that they could find more infringing code if they just had more AIX code, plus comments, revision control systems, interim versions of AIX and Dynix, design documents related to modifications and revisions,” wrote SCO case watcher—and not entirely dispassionate observer—Pamela Jones, founder and editor of Groklaw.net.

Jones notes that SCO has since backed away from claims that IBM illegally transferred its proprietary Unix System V source code to Linux via versions of AIX and Dynix. “That's what you told us you already had, bub, long before discovery began. It was SCO that raised that exact thought. Now that they can't find what they said they had, they are distancing themselves from the idea.”

On the other hand, says Gordon Haff, a senior analyst with consultancy Illuminata, the line-by-line copying claim has, almost from the start, only been a minor (if sensational) part of SCO’s case.

“Even as long ago as last summer, it never really seemed to be the main thrust of their case,” he comments, noting that the examples of line-by-line copying that SCO has thus far produced are underwhelming—and far from clear-cut—to say the least. “Basically, the original case was essentially based on three things: Literal line-for-line copying; essentially a derivative works claim that essentially held that really, almost anything related to Unix was a Unix-derivative work; and then sort of a broader methods and structures claim.”

At the same time, Haff allows, the comprehensive discovery request submitted by SCO is not essential to its derivative works argument, but could, if granted, support the embattled vendor’s line-by-line copying claim. So what gives?

The upshot, he concludes, is that SCO’s latest filing is a fishing expedition, but one that’s part-and-parcel of the legal trade in all such cases. “This is what lawyers do. They’re always going to press discovery, asking for more and more, hoping to uncover something that may not even be what they’re originally looking for,” he notes. “But I think it is a fishing expedition to some degree. How much of it is that they hope to find copied code? They certainly have not made strong claims around copied code so far, so whether they genuinely hope to uncover some more examples [of copied code], is hard to say.”

About the Author

Stephen Swoyer is a Nashville, TN-based freelance journalist who writes about technology.